Anderson v. Crandell's Enterprises, Inc. et al

Filing 33

ORDER denying 21 Motion for Entry of Default; denying 30 Motion to Strike; and denying as moot 28 Motion to Withdraw. Signed by US District Judge Terrence W. Boyle on 2/15/2017. Counsel is reminded to read the order in its entirety for important information. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-272-BO
MICHAEL A. ANDERSON,
Plaintiff,

v.

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)
)
)

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ORDER

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CRANDELL'S ENTERPRISES, INC.,
)
MARY ANN CRANDELL, and CAROLYN)
MAYO,
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)
Defendants. )

This cause comes before the Court on plaintiffs motions for entry of default and to strike
and defendants' motion to withdraw or amend. The appropriate responses and replies have been
filed and the motions are ripe for ruling. For the reasons discussed below, plaintiffs motions are
denied and defendants' motion is denied as moot.
BACKGROUND
Plaintiff, a former employee of defendants, filed this action under the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 201, et seq., the North Carolina Wage and Hour Act, N.C.
Gen. Stat.§§ 95-25.1, et seq., and for common law wrongful discharge. By order entered
August 16, 2016, the court allowed counsel for defendants to withdraw. [DE 20]. Because
defendants include a corporation which may not appear in this Court prose, the Court ordered
that defendants retain new counsel to file a notice of appearance on or before September 6, 2016.
The Court further notified defendants that failure to retain counsel could result in entry of default
judgment against the corporation.

The 6 September deadline passed and counsel had not made an appearance on behalf of
any of defendants. On September 12, 2016, plaintiff moved to strike Crandell' s Enterprises'
answer, for entry of default as to that defendant, and to deem admitted plaintiff's first set of
requests for admission by all defendants. [DE 21]. On September 21, 2016, duly admitted
counsel noticed an appearance on behalf of all defendants. [DE 23]. Defendants then filed a
response in opposition to plaintiff's motion and moved to withdraw or amend any deemed
admissions to plaintiff's first set ofrequests for admissions. [DE 28]. Plaintiff then moved to
strike defendants' responses to plaintiff's first set of requests for admissions, attached to their
opposition to entry of default, as untimely. [DE 30].
DISCUSSION
Recognizing that counsel for defendant Crandell's Enterprises filed an appearance after
the deadline imposed by the Court, the Court finds that the countervailing interest in resolving
disputes on the merits outweighs any brief delay caused by the failure to heed the Court's
deadline. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)
(motions to strike provide for a drastic remedy and are disfavored); Colleton Preparatory Acad.,

Inc. v. Hoover Universal, Inc., 616 F .3d 413, 417 (4th Cir. 2010) (court of appeals has
"repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that
claims and defenses be disposed of on their merits."). For this reason, plaintiff's request that the
answer of Crandell's Enterprises be stricken and default be entered is denied.
For similar reasons, the Court declines to deem plaintiff's first set of requests for
admissions as admitted by all defendants. Further, the Court allows defendants' responses filed
October 6, 2016 [DE 29-1] to be deemed timely filed. Plaintiff's motion to strike defendants'

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responses is therefore denied. This matter shall proceed through discovery and motions practice
as outlined in the Court's order entered November 9, 2016. [DE 32].
CONCLUSION
For the foregoing reasons, plaintiffs motion for entry of default [DE 21] is DENIED and
plaintiffs motion to strike [DE 30] is DENIED. Defendants' motion to withdraw or in the
alternative amend [DE 28] is DENIED AS MOOT and defendants' responses to plaintiffs first
set of requests for admissions [DE 29-1] are deemed timely filed.

SO ORDERED, this j£day of February, 2017.

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